What is Pain and Suffering?
In a motor vehicle wreck case, or any other negligence case, there are several areas of damages that an injured person can recover. They can recover their medical bills; their future medical bills; their loss of use of a body party; their lost wages if they missed work; and pain and suffering.
“Pain and suffering” is a term almost everyone has heard, but may not actually know what it means. It includes both physical pain as well as mental or emotional suffering. It also includes not only the pain of the initial injury, but also the pain of the recovery process whether that is chiropractic care or surgery. Pain and suffering is different from and in addition to the actual medical bills. Your pain and suffering does not affect how much the doctor or hospital bills you. Even the costs for pain medication are different from the pain and suffering damages. Although hopefully any such medication would mitigate the pain. Mental suffering does not mean that you are going to a psychologist for mental health. It would include being nervous and anxious about getting in a car or driving to the scene of your wreck; the uncertainty of whether your job will still be waiting when you recover; anxiety about how your partner or family may view you differently since you are injured; your feelings when you can’t do the activities you loved before your injury.
When people discuss tort reform and injured persons getting “too much” recovery at trial, frequently they look at caps on punitive damages and pain and suffering damages. As a result those types become the same thing to most people. However, they are very different. Pain and suffering is included with lost wages and medical bills as “actual damages.” Even though it is more difficult to determine the correct amount, physical pain and mental suffering is an actual damage to a person because of a defendant’s negligence as much as a medical bill is. Punitive damages are independent of what harm the injured party actually suffers. Punitive damages are found based on other factors including the worth of the defendant. Punitive means “punishment” and it is designed to stop intentional or grossly negligent conduct from occurring.
Ask any doctor or psychologist and they will tell you there is no objective scale to measure physical pain or mental suffering. The best that can be done is have the patient evaluate their pain on a scale of 1 to 10. You may have also seen a scale with a “frowny face” that goes to a “happy face.”
When injured persons are asking a jury to pay their damages based on what they feel, it is easy for a juror to get suspicious that they are not really telling the truth. In my experience, injured people in a lawsuit are usually telling the truth and not “malingering.” The ones who may be inflating their pain are usually caught by their doctors by being inconsistent. The classic example is complaints of pain during an examination but walking normally in the parking lot.
I usually have more problems with clients who downplay or don’t mention their pain to their doctors. In general, people don’t want to look weak or whiny. They may not want a doctor to give them drugs. They may not want to admit they have a serious problem they won’t just go away. They may only tell the doctor about their biggest pain or immediate concern.
Even with people who tell the truth, the whole truth, and nothing but the truth, it is difficult to evaluate. Attorneys and insurance companies generally use various formulas to get in the right ballpark for the damages for pain and suffering. One method is to take the medical bills and apply a multiplier of 1.5-3 times the amount. For example, if a person’s medical bills were $5000, a pain and suffering damage may be $7500–$15,000. That multiplier could be adjusted by the severity of the injuries; the pain and overall discomfort that is associated with those types of injuries; how the injuries have impacted the person’s life, job, relationships, etc.; the amount and types of medical treatment those injuries require; how long those injuries take to heal; and if the injured will need future care, like therapy, medications, surgeries, etc. Another method is the per diem method which is usually used where there is a permanent injury causing pain. That method calls for assigning an amount of compensation for pain each day, for example $1–$50 a day. Then using the person’s expected life span in days, a total number can be calculated. Insurance companies also have access to proprietary computer programs that calculate a number based on that insurance company’s prior settlements and jury verdicts.
As you can see, the pain and suffering part of a personal injury case is complicated. Even where there is no question as to fault, if a person has more than one or two trips to a medical provider for their injuries, I recommend they contact a lawyer for assistance.
-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation. Please contact him at (910) 772-1678.